Hightower v. Saxton

• Decision Date: 25 July 2001
• Docket Number: No. 10-99-364-CV,10-99-364-CV
• Citation: 54 S.W.3d 380
• Parties: (Tex.App.-Waco 2001) REBECCA J. HIGHTOWER, Appellant v. ROBERT H. SAXTON, M.D., ROBERT H. SAXTON, M.D., P.A., AND FRED A. WALTERS, M.D., Appellees
• Court: Texas Court of Appeals

Page 380

54 S.W.3d 380 (Tex.App.-Waco 2001)

REBECCA J. HIGHTOWER, Appellant v. ROBERT H. SAXTON, M.D., ROBERT H. SAXTON, M.D., P.A., AND FRED A. WALTERS, M.D., Appellees

No. 10-99-364-CV

Court of Appeals of Texas, Waco

July 25, 2001.

Rehearing Overruled Aug. 22, 2001

From the 74th District Court McLennan County, Texas Trial Court # 97-4095-3

[Copyrighted Material Omitted]

Before Chief Justice Davis, Justice Vance, and Justice Gray

O P I N I O N

BILL VANCE, Justice

Rebecca Hightower filed suit alleging medical malpractice against two physicians, Robert Saxton, M.D. ("Dr. Saxton") and Fred Walters, M.D. ("Dr. Walters"). Dr. Saxton and Dr. Walters each filed a Motion to Dismiss under article 4590i, section 13.01 of the Medical Liability and Insurance Improvement Act. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(e) (Vernon Supp. 2001). While the motions were pending, Dr. Walters filed a motion for summary judgment. On October 5, 1999, the trial court granted Dr. Saxton's motion to dismiss with prejudice and Dr. Walters's Motion for Summary Judgment. Hightower appeals both rulings. We will affirm.

DISCUSSION

Hightower brings five issues on appeal. Issues one and two involve the trial court's granting of Dr. Saxton's Motion to Dismiss. Our discussion of the dismissal will concern whether Hightower's expert's affidavit was adequate under section 13.01, and whether a supplemental affidavit could have cured its inadequacies, if any. Issues three, four, and five involve the trial court's granting of Dr. Walters's Motion for Summary Judgment. Our discussion of the summary judgment will concern whether Hightower's expert's supplemental affidavit raised a fact issue sufficient to defeat a no-evidence summary-judgment motion.

Dr. Saxton's Motion to Dismiss

In November 1995, Hightower injured her back on the job while picking up a forty pound tray of potatoes. Hightower went to Dr. Saxton, who recommended surgery. On December 26, 1995, Dr. Saxton performed surgery on her back. The surgery did not help, and on December 11, 1997, Hightower filed suit alleging medical negligence.

On July 20, 1998, Dr. Saxton filed a Motion to Dismiss, claiming that under section 13.01 Hightower had failed to furnish an adequate expert report or curriculum vitae within 180 days of filing her lawsuit. In her response to the motion, Hightower contended that she had furnished Dr. Randall F. Dryer's affidavit which served as an expert report, and that all parties had timely received his curriculum vitae (CV).

On October 5, 1999, the trial court granted Dr. Saxton's Motion to Dismiss, and dismissed Hightower's suit with prejudice. It is not clear from the trial court's order whether the dismissal was based on the report, the curriculum vitae, or both.

a. Section 13.01

The Supreme Court recently discussed the section 13.01 requirements for bringing a medical malpractice claim. American Transitional Care Centers of Texas, Inc. v. Palacios, 44 Tex. Sup. Ct. J. 720, 721, 2001 WL 491205, at *2 (May 10, 2001). In Palacios, the court stated:

Texas courts have long recognized the necessity of expert testimony in medical-malpractice cases. E.g., Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex. 1966); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (Tex. 1949). "There can be no other guide [than expert testimony], and where want of skill and attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury." Hart, 399 S.W.2d at 792. Because expert testimony is crucial to a medical-malpractice case, knowing what specific conduct the plaintiff's experts have called into question is critical to both the defendant's ability to prepare for trial and the trial court's ability to evaluate the viability of the plaintiff's claims. This makes eliciting an expert's opinions early in the litigation an obvious place to start in attempting to reduce frivolous lawsuits.

Id. Accordingly, the Legislature requires under section 13.01:

* Medical-malpractice plaintiffs, within 180 days of filing suit, must either provide each defendant physician and health-care provider with an (1) expert report and (2) the expert's curriculum vitae, or nonsuit the claims. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d).

* If the plaintiff fails to provide a report and CV or nonsuit the case, the trial court must sanction the plaintiff by dismissing the case with prejudice, awarding costs and attorney's fees to the defendant, and ordering the forfeiture of any applicable cost bond necessary to pay that award. Id. § 13.01(e).

* If the plaintiff does timely file a report, the defendant may move to challenge the adequacy of the report, and the trial court must grant the motion if "it appears to the court . . . that the report does not represent a good faith effort to comply with the definition of an expert report." Id. § 13.01(l).

* The statute defines an expert report as "a written report by an expert that provides a fair summary of the expert's opinions . . . regarding applicable standards of care, the manner in which the care rendered . . . failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Id. § 13.01(r)(6).

* If a trial court determines that an expert report does not meet these statutory requirements and the time for filing a report has passed, it must then dismiss with prejudice the claims against the defendant who has challenged the report. Id. § 13.01(e).

In reviewing a trial court's order to dismiss under section 13.01, we apply an abuse of discretion standard. Palacios, 46 S.W.3d at 875. A trial court abuses its discretion if it acts without reference to any guiding rules or principles in other words, if it acts arbitrarily or unreasonably. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).

As stated before, it is not clear from the trial court's order whether the dismissal was based on the report, the CV, or both. It is undisputed that the record contains Dr. Dryer's affidavit, so we can analyze it for its adequacy as an expert's report. However, other than counsel's assertions, the record does not contain evidence of when Dr. Dryer's CV was originally produced. An attorney's unsworn factual allegations may not be considered as evidence to support his client's failure or non-failure to comply with article 4590i. See Minns v. Pitrowski, 904 S.W.2d 161, 169 (Tex. App. Waco 1995), writ denied with per curiam opinion, 917 S.W.2d 796 (Tex. 1996).

Thus, we will first analyze Dr. Dryer's affidavit to determine whether the trial court abused its discretion in finding that it was inadequate as an expert's report. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(l). If the trial court did not abuse its discretion, then dismissal was appropriate. Id. § 13.01(e). If so, we would not reach whether the CV was timely provided.

b. Adequacy of an expert's report

In determining the adequacy of an expert's report under section 13.01, the issue for the trial court is whether "the report" represents a good-faith effort to comply with the statutory definition of an expert report. Palacios, 46 S.W.3d at 878 (citing Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(l)). That definition requires, as to each defendant, a fair summary of the expert's opinions about: (1) the applicable standard of care, (2) the manner in which the care failed to meet that standard, and (3) the causal relationship between that failure and the claimed injury. Id. (citing Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6)). Because the statute focuses on what the report discusses, the only information relevant to the inquiry is within the four corners of the document. Id.

The Supreme Court in Palacios stated:

A report need not marshal all the plaintiff's proof, but it must include the expert's opinion on each of the elements identified in the statute. In setting out the expert's opinions on each of those elements, the report must provide enough information to fulfill two purposes if it is to constitute a good-faith effort. First, the report must inform the defendant of the specific conduct the plaintiff has called into question. Second, and equally important, the report must provide a basis for the trial court to conclude that the claims have merit.

. . .

[However a] report that merely states the expert's conclusions about the standard of care, breach, and causation does not fulfill these two purposes. Nor can a report meet these purposes and thus constitute a good-faith effort if it omits any of the statutory requirements. However, to avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits. The report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.

Id. (citations omitted).

Dr. Dryer's affidavit states in full:

I am an Orthopedic Surgeon, licensed to practice medicine in Texas and currently practicing in Austin, Texas. One of my patients is Rebecca Hightower. After reviewing Rebecca's medical records, her history, her scans and her current problem, I have concluded that Rebecca Hightower has suffered injuries as a result of malpractice by Robert Saxton, M.D. and Fred Walters.

It appears to me that Dr. Saxton's surgery was performed below the standard of care, causing injury to Ms. Hightower. In addition, it appears that Dr. Walters misread the MRI scan. The misread was below the standard of care and caused damages and delay of treatment to Ms. Hightower.

We find that Dr. Dryer's affidavit fails to represent a "good-faith effort to comply with the statutory definition of an expert report." Id. (citing Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(l)). First, the affidavit fails to identify the appropriate standard of care for Dr. Saxton. Dr. Dryer states only that he is an ...